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Adams on Contract Drafting

Jurisdiction Provisions, Part 1: Stop Using Consent-to-Jurisdiction Provisions!

Posted on August 24, 2019 by Ken Adams

Recently I devoted this post to John F. Coyle’s article on governing-law provisions. I’ve now gotten my hands on his recent article Interpreting Forum Selection Clauses (here). (I call them “jurisdiction provisions.” More on that later.) In John’s words, jurisdiction provisions are “contractual provisions in which the parties agree to litigate their disputes in a […]

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Having Nonparties Release Stuff

Posted on August 2, 2019 by Ken Adams

I’m doing what I can to advance the cause, but we’re all fortunate to have Glenn West plugging away, posting his analyses at such a rate that I have a hard time keeping up. For his collected oeuvre, go here. Today’s post is inspired by something from his archives, this 2016 post about whether a […]

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Revisiting Governing-Law Provisions

Posted on August 1, 2019 by Ken Adams

In 2015 I did these three posts about governing-law provisions. Well, it’s time to look at the subject again, thanks to a law-review article by John F. Coyle of University of North Carolina at Chapel Hill. The article is entitled The Canons of Construction for Choice-of-Law Clauses; go here for a PDF. Professor Coyle is […]

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State Activism Through Contracting

Posted on April 7, 2019 by Ken Adams

While I was rooting around in hotel agreements, the following provisions caught my eye. First Example This was in a contract between a hotel and some instrumentality of Tennessee state government: The HOTEL certifies, under penalty of perjury, that to the best of its knowledge and belief the HOTEL is not on the list created […]

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Conflicting Provisions: Seeking Examples

Posted on March 22, 2019 by Ken Adams

You’re drafting a contract, as you’re in the habit of doing. You include a waiver of jury trial, for whatever reason. And you make California law the governing law. Or maybe Georgia law. Well, for purposes of trials in state court, courts in California and Georgia have held that pre-litigation waivers of jury trial are […]

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An Instance of Inconsistency in Saying that Notices Must Be in Writing

Posted on October 9, 2018 by Ken Adams

I recently had a random Edgar encounter with the following set of internal rules of interpretation: Welcome to the suck: the first, second, third, and fifth are hopeless. And dig that crazy period-and-parentheses enumeration combo. But the fourth is what caught my eye. So the notices provision says that notices must be in writing to […]

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Two Issues Relating to Contract Obligations to Comply with the Law

Posted on September 27, 2018 by Ken Adams

Behold the following tweets, one by me considering the difference between saying comply with the law and comply with all laws, not to mention comply with all applicable laws, and an unexpected reply from Jason Morris, aka @RoundTableLaw: I don't understand how, if contracts to violate the law are invalid, this says anything at all. […]

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Cumulative Remedies? No Thanks

Posted on September 17, 2018 by Ken Adams

Readers tell me that businesspeople keep asking them to cut from contracts that which is unduly risk-averse or plain old unnecessary. Lawyers might be inclined to attribute that to businesspeople doing what they gotta do. In this view of things, lawyers are a bulwark against rank expediency. But there’s is a lot of fat in […]

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Check Out My No-Criticizing Provision

Posted on July 24, 2018 by Ken Adams

No-disparaging provisions are found in employment agreements, separation agreements, settlement agreements, even end-user license agreements. But there’s a problem with no-disparaging provisions. … The rest of this post is on the LegalSifter blog. To read it, go here.

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Consider Using Gerunds to Refer to a Kind of Provision (Or Why I Say “No-Soliciting Provision”)

Posted on July 13, 2018 by Ken Adams

OK, which do you like better: nonsolicitation provision no-soliciting provision And here: nondisparagement provision no-disparaging provision And here: noncompetition provision no-competing provision Me, I like the second option in each. The first option is a clunky abstract noun. Boo. The second is a gerund, basically a verb form acting as a noun. (More on gerunds […]

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